APCC and the other respondents are payphone service providers (PSP) and aggregators --
intermediaries between PSPs and interexchange carriers (IXCs). Respondents Sprint and AT&T
are IXCs. The plaintiffs below (who are now respondents before the Supreme Court, and were
previously its petitioners) filed complaints in U.S. District Court (DC) claiming compensation
owed to them by IXCs for coinless payphone calls required by Federal Communications Commission
(FCC) rules. The IXCs moved to dismiss the aggregators' claims, asserting lack of standing.
The District Court, back in 2003, held that the petitioners had standing to sue.

The Court of Appeals wrote in its June 8, 2007, opinion that "The IXCs moved to dismiss
on the grounds that the aggregators did not have standing to sue and the Communications Act of
1934, 47 U.S.C. § 151 et seq., did not give the plaintiffs a private right of action to recover
for a violation of the regulation. The district court denied the motions, concluding the
aggregators had standing, ... and that § 276 of the Act created a private right
of action."

On June 28, 2005, the Court of Appeals issued its divided
opinion [32 pages PDF] in APCC Services v. Sprint, 418 F.3d 1238. The Court
of Appeals held then that Chapter 5 of the Communications Act, which is codified at
47 U.S.C. §§ 151–615b, does not create a private right of action for an owner or
operator of a payphone to recover from an interexchange carrier (IXC) the
compensation for coinless payphone calls required by a FCC rules.

The Court of Appeals wrote a short summary of its June 28, 2005 opinion in
its June 8, 2007 opinion. It wrote that "This court
reversed. The panel determined, over the dissent of Judge Sentelle, that the
aggregators had standing to sue and, over the dissent of Chief Judge Ginsburg,
that none of the provisions cited gave the plaintiffs a right to sue in federal
court; they were remitted to filing a complaint for reparations before the FCC."

The plaintiffs (APCC et al.) petitioned the Supreme Court for writ of
certiorari. On April 23, 2007, the Supreme Court wrote in its
Orders
List [10 pages in PDF] that "The petition for a writ of certiorari is
granted. The judgment is vacated and the case is remanded to the United States
Court of Appeals for the District of Columbia Circuit for further consideration
in light of Global Crossing Telecommunications, Inc. v. Metrophones
Telecommunications, Inc., 550 U. S. __ (2007)."

The Supreme Court issued its
opinion
[40 pages in PDF] in Global Crossing on April 17, 2007. It wrote in that
opinion the FCC "has established rules that require long-distance
(and certain other) communications carriers to compensate a payphone operator
when a caller uses a payphone to obtain free access to the carrier’s lines (by
dialing, e.g., a 1–800 number or other access code)." (Parentheses in original.)

The Supreme Court continued that the FCC has written rules that make a
carrier's refusal to pay compensation a practice that is unjust or unreasonable
under the Communications Act, at 47 U. S. C. §201(b). It further wrote that the
act "links §201(b) to §207, which authorizes any person ``damaged´´ by a
violation of §201(b) to bring a lawsuit to recover damages in federal court."

The Supreme Court stated that the issue is "whether this
linked section, §207, authorizes a payphone operator to bring a federal-court
lawsuit against a recalcitrant carrier that refuses to pay the compensation that
the Commission’s order says it owes." The Supreme Court held that "the FCC’s
application of §201(b) to the carrier’s refusal to pay compensation is a
reasonable".

On remand, the Court of Appeals
issued the June 8, 2007 opinion now under review. It affirmed the District
Court's ruling that the plaintiffs lack standing, and remanded to the District Court.

The Court of Appeals offered this explanation. "The Supreme Court, however, held in
Global Crossing that a violation of the regulation at issue is a violation of § 201(b)
of the Act, for which a private right of action is authorized by § 207 of the Act, in
effect creating a right of action to remedy a violation of the regulation itself. ... It is
now clear, therefore, that APCC et al. may pursue their case in district court under
§ 201(b). Accordingly, the orders of the district court denying the motions to
dismiss are affirmed, and the case is remanded for further proceedings."

Sprint and AT&T then filed a petition for writ of certiorari. They argue that the
Supreme Court's opinion in Global Crossing addresses remedies of PSPs, while, in contrast,
they seek dismissal of claims by aggregators.

And now, the Supreme Court has granted certiorari again.

This case is Sprint Communications v. APCC Services, Supreme Court of
the United States, Sup. Ct. No. 07-552, a petition for writ of certiorari to the
U.S. Court of Appeals for the District of Columbia.

Sprint is represented by
Thomas Goldstein of the
Washington DC office of the law firm of Akin Gump.

APCC is represented by
Roy Englert
of the Washington DC office of the law firm of Robbins Russell.

The brief of petitioners is due by Thursday, February 14, 2008. The brief of respondents
is due by Wednesday, March 12, 2008.

More Supreme Court News

1/7. The Supreme Court issued an
order in Quanta Computer v. LG Electronics, Sup. Ct. No. 06-937, a
patent infringement case. It wrote that "The motion of petitioners for leave to
file a reply brief under seal with redacted copies for the public record is
granted." See,
Orders List [44 pages in PDF] at page 18. See also, July 7, 2006,
opinion [31 pages in
PDF] of the U.S. Court of Appeals (FedCir)
and Supreme Court
docket. And see, stories titled "Supreme Court Grants Certiorari in Patent
Exhaustion Case" in
TLJ Daily E-Mail Alert No. 1,647, September 27, 2007, and "Supreme Court to
Hear Case Regarding Patent Exhaustion Doctrine" in TLJ Daily E-Mail Alert No.
1,683, December 5, 2007. The Supreme Court will hear oral argument on January 16, 2008.

1/7. The Supreme Court denied
certiorari in Semen Leykin v. AT&T, Sup. Ct. No. 07-484. See,
Orders List [44 pages in PDF] at page 20. This is dismissed class action
securities fraud case arising in the U.S. District Court (NYSD), and appealed to
the U.S. Court of Appeals (2ndCir).

1/7. The Federal Communications Commission's (FCC) Public
Safety and Homeland Security Bureau (PSHSB) announced that it will host a 911 summit on
February 6, 2008, at the FCC building in Washington DC. It stated that the summit will address
"issues relating to the deployment and use of Next Generation 911 technology and the
coordination of those efforts among Public Safety Answering Points, the telecommunications
industry and manufacturers". See,
notice
and registration page.

1/3. The Federal Communications Commission (FCC)
announced the deadlines for comments in response to its notice of proposed rulemaking regarding
the establishment of a Commercial Mobile Alert System (CMAS). This NPRM, which was
adopted and released on December 14, 2007, is FCC 07-214 in PSHSB Docket No. 07-287. See,
notice in the Federal Register, January
3, 2008, Vol. 73, No. 2, at Pages 545-607. The relevant FCC proceeding is numbered CG Docket
No. 03-123. Initial comments are due by February 4, 2008. Reply comments are due by February
19, 2008.

Tech Law Journal publishes a free access web site and
subscription e-mail alert. The basic rate for a subscription
to the TLJ Daily E-Mail Alert is $250 per year. However, there
are discounts for subscribers with multiple recipients. Free one
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free access. However, copies of the TLJ Daily E-Mail Alert are not
published in the web site until one month after writing. See, subscription
information page.

The Senate will meet momentarily in pro forma session. The
Senate Democratic leadership holds these pro forma sessions to maintain the
procedural fiction that it is not in recess. It does so to preclude President
Bush from making recess appointments, based upon the fiction that the Senate
is unavailable to confirm nominees.

8:30 AM - 6:00 PM. Day one of a three day meeting of the
Architectural and Transportation Barriers
Compliance Board's (ATBCB) Telecommunications and Electronic and Information
Technology Advisory Committee (TEITAC). Section 508 of the Rehabilitation Act of 1973,
as amended, provides at
29 U.S.C. § 794d that each federal agency "developing, procuring, maintaining,
or using electronic and information technology" must provide comparable access to
disabled federal employees, and to disabled members of the public who have access to and
use of information and data of that agency; it further provides that each agency must
comply with disability access regulations written by the ATBCB. For more
information, contact Timothy Creagan at 202-272-0016 or creagan at
access dash board dot gov. See,
notice in the Federal Register, December 18, 2007, Vol. 72, No. 242, at
Pages 71613-71614. Location: National Science Foundation (NSF), 4121 Wilson
Boulevard, Arlington, VA.

9:00 - 10:30 AM. The
U.S. Chamber of Commerce will hold a
news conference at which it will release a report titled "State of American
Business". The Chamber's Tom Donohue and Bruce Josten will speak and answer
questions. See,
notice. Location: Chamber, 1615 H St., NW.

10:30 AM - 1:30 PM. The
U.S. Chamber of Commerce will host an event titled
"Outlook 2008: The State of American Business". See,
notice. Location: Chamber, 1615 H St., NW.

12:00 NOON - 1:30 PM. The
Alliance for Public Technology (APT) will host a program
titled "Bringing Educational Opportunities to Rural & Urban America".
The speakers will include Robert Atkinson (head of the
Information Technology and Innovation Foundation). This is part of a series of events
on Capitol Hill at which the APT gives broadband related awards. A box lunch will be served.
RSVP to apt at apt dot org or 202-263-2970. Location: Room HC-6, Capitol Building.

Deadline to submit initial comments to the
Federal Communications Commission (FCC) in
response to its Notice of Proposed Rulemaking (NPRM) in which it proposes to
extend the current five year registration period for the Do Not Call
Registry. This NPRM is FCC 07-203 in CG Docket No. 02-278. See,
notice in the Federal Register, December 14, 2007, Vol. 72, No. 240, at Pages
71099-71102. See also, story titled "FCC Adopts NPRM Regarding Extending Do Not Call
Registrations" in TLJ Daily E-Mail Alert No. 1,680, November 30, 2007.

Monday, January 14. 11:15 AM - 3:15 PM. Princeton University's
Center for
Information Technology Policy (CITP) will host a one day conference titled
"Cloud Computing and Privacy". There will be panels titled "Possession
and ownership of data", Security and risk in the cloud", and "Civics in the
cloud". The final panel will address the following topics: "What new services
might develop, and how will today’s services evolve? How well will cloud
computing be likely to serve users, companies, investors, government, and the
public over the longer run? Which social and policy problems will get worse
due to cloud computing, and which will get better?" See,
notice. Location:
Friend Center convocation room, Princeton University, Princeton, New Jersey.

January 27-30. The National Institute of Standards and
Technology (NIST) will hold a four day meeting titled "Interim Meetings of
the 93rd National Conference on Weights and Measures" or "NCWM". The agenda
includes the following proposal to amend NIST Handbook 44: "Item 310-2.
Appendix D -- Definition of Electronic Devices, Software-Based: This item
removes the terms ``built-for-purpose´´
and ``not-built-for-purpose´´ and instead
defines software-based devices as either ``embedded software devices (Type P)´´ or ``programmable or loadable metrological
software devices (Type U)''. See,
notice in the Federal Register: January 4, 2008, Vol. 73, No. 3, Page
842-843. Location: Hyatt Regency Albuquerque, Albuquerque, New Mexico.